Petition for Review from the Superior Court in Pinal County
No. S1100CR201400054 The Honorable Joseph R. Georgini, Judge
P. Volkmer, Pinal County Attorney By Geraldine L. Roll,
Deputy County Attorney, Florence Counsel for Respondent
Artemio H. Varela, Kingman In Propria Persona
Judge Eckerstrom authored the opinion of the Court, in which
Judge Eppich and Judge Brearcliffe concurred.
ECKERSTROM, CHIEF JUDGE
Petitioner Artemio Varela seeks review of the trial
court's order denying his petition for post-conviction
relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We
will not disturb a trial court's ruling on a petition for
post-conviction relief absent a clear abuse of
discretion." State v. Swoopes, 216 Ariz. 390,
¶ 4 (App. 2007). Because Varela has established a
colorable claim of ineffective assistance of appellate
counsel, we grant relief in part, but otherwise deny relief.
After a jury trial, Varela was convicted of three counts of
sexual abuse and sentenced to consecutive, 2.25-year prison
terms for each offense. He timely appealed, but this court
later dismissed that appeal pursuant to Varela's motion.
Varela sought post-conviction relief, arguing in his petition
that he had received ineffective assistance of trial counsel
in that counsel had not investigated the scene of the offense
or called "a key witness" and appellate counsel had
"dropped the ball on Direct Appeal." The trial
court summarily denied relief, finding that Varela's
claims were precluded, untimely, or "lack[ed] sufficient
basis in law and fact to warrant further proceedings."
On review Varela argues his claims were not precluded or
untimely, and the trial court erred in summarily denying
relief. Because this is a first, timely proceeding, we agree
with Varela that his claims of ineffective assistance of
counsel are not precluded or barred as untimely. See
Ariz. R. Crim. P. 32.2(b), 32.4(a)(2)(A), (D).
We agree with the trial court, however, that Varela has not
presented a colorable claim of ineffective assistance of
trial counsel. In his petition for review Varela points us to
his petition for post-conviction relief, apparently
attempting to incorporate his arguments there by reference.
This procedure is not allowed. See Ariz. R. Crim. P.
32.9(c)(4)(B), (5)(A) (petition for review must contain
"reasons why the appellate court should grant the
petition," but shall not "incorporate any document
by reference, except the appendix").
Furthermore, "[t]o state a colorable claim of
ineffective assistance of counsel, a defendant must show both
that counsel's performance fell below objectively
reasonable standards and that this deficiency prejudiced the
defendant." State v. Bennett, 213 Ariz. 562,
¶ 21 (2006); see also Strickland v. Washington,
466 U.S. 668, 687 (1984). To show prejudice, a defendant must
demonstrate there is a "reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different."
Strickland, 466 U.S. at 694. "A reasonable
probability is a probability sufficient to undermine
confidence in the outcome." Id.
Varela contended his trial counsel lacked diligence in
"the investigatory part of this case and the calling of
witness [es] who would have given exculpatory testimony
corroborating his innocence of the offense." He alleged
counsel failed to review surveillance footage and failed to